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Waite & others v Kedai Limited and the first Remediation Order under Building Safety Act 2022

12 September 2023
The First-tier Tribunal has handed down the first Remediation Order to be issued under s.123 of the Building Safety Act 2022 ("BSA").

Remediation Orders

Remediation Orders form an important part of the leaseholder protections established pursuant to the BSA, and are defined, in s.123 of the BSA, as orders "made by the First-tier Tribunal on the application of an interested person, requiring a relevant landlord to remedy specified relevant defects in a specified relevant building by a specified time."

Therefore, the effect of an order, if granted, requires a relevant landlord to engage in remediation works to rectify construction defects which pose a building safety risk to a relevant building within the prescribed period of time set out in the order.

The definitions of "interested person", "relevant landlord", "relevant defect", "relevant building" and "specified" can be found in sections 123 (5), 123 (3), 120, 117 and 123 (6) of the BSA respectively.

Waite & Others v Kedai Limited: Summary

The case which came before the Tribunal concerned a former commercial premises which was converted in 2016 into a mixed-use building of six storeys, with two ground floor retail units and residential units occupying the remaining floors.

Post-Grenfell, a group of leaseholders who occupied units within the building raised a number of concerns particularly with regards to the building's external cladding, however no works were ever carried out to address the issues arising.

The leaseholders therefore successfully brought an application to the First-tier Tribunal which granted a remediation order against the landlord (freeholder) of the building.

A summary of the key points arising from the judgment are set out below:

  • Burden of Proof: The landlord argued that the burden of proof lay with the leaseholders (e.g. to prove that the relevant defects existed and to propose the necessary remedial works). However, the Tribunal disagreed, deciding that applications such as these should be decided on an evidence-based assessment following the production of expert reports alongside the Tribunal's own expertise on building safety matters and its inspection of the building. When making its decision, the Tribunal looked at whether or not the relevant defect created a building safety risk at the present time rather than whether or not the work complied with the Building Regulations when it was originally completed.
  • Remedial works ordered:
    • The Tribunal's Remediation Order contained a schedule of specified defects and identified the required remedial works. However, the BSA is not prescriptive in this regard and often a broad schedule of works will suffice provided that the order is sufficiently precise so that the relevant landlord knows what works need to be carried out. In most cases, the cost of preparing a specification of works will fall to the relevant landlord.
    • The Tribunal was satisfied that it was able to make an order in respect of the timescale for the works to be carried out without the leaseholders' approval of the specification being a pre-condition for same. Instead, other safeguards would be in place to confirm the adequacy and quality of the remedial works undertaken (e.g. fire authority review, building control approval etc.).
    • The BSA does not prescribe a standard for remedial work but the Tribunal in Waite held that the works should (1) comply with the Building Regulations in force at the time the remedial work is carried out, and (2) at the very least, be able to achieve a 'satisfactory' EWS1 Form.
  • Costs: The Tribunal is a 'no costs jurisdiction' (i.e. each party bears its own legal costs), save where a party has acted unreasonably. The leaseholders in Waite also sought to prevent the Landlord from passing on its costs of the proceedings via the service charge. The Tribunal held that only 20% of the landlord's costs could be passed to non-qualifying leaseholders through the service charge[1] (and under schedule 8 of the BSA, a qualifying leaseholder is not required to pay for a landlord's legal costs relating to relevant defects through its service charge).

[1] Pursuant to s.20C of the Landlord and Tenant Act 1985

We would also like to thank Dylan Higgins for their contribution to this article.

To find out more about the points raised in this article please contact Kate Monaghan

Further Reading